Commonwealth v. Rosenfelt

WIEAND, Judge,

dissenting:

The majority holds that, pursuant to Article I, Section 8, of the Pennsylvania Constitution, “a warrant becomes mandatory to search a vehicle, absent exigent circumstances apart from the vehicle’s potential mobility.” Although I understand the majority’s reasoning, I am of the opinion that the decision of the Pennsylvania Supreme Court in Commonwealth v. Baker, 518 Pa. 145 , 541 A.2d 1381 (1988), overruled on other grounds in Commonwealth v. Rosario, 538 Pa. 400 , 648 A.2d 1172 (1994), compels a contrary result. In Baker , the Supreme Court analyzed the lawfulness of a warrantless search of an automobile under both the Fourth Amendment and Article I, Section 8, of the Pennsylvania Constitution. In so doing, the Court reasoned as follows:

It is well established that automobiles are not per se unprotected by the warrant requirements of the Fourth Amendment, and of Art. I, § 8 of the Pennsylvania Constitution. Commonwealth v. Holzer, 480 Pa. 93 , 389 A.2d 101 (1978). Nevertheless, certain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present. See Commonwealth v. Milyak, 508 Pa. 2 , 493 A.2d 1346 (1985); Commonwealth v. Holzer, supra; Commonwealth v. Lewis, 442 Pa. 98 , 275 A.2d 51 (1971) (warrantless search proper where probable cause exists to believe evidence of crime is concealed in a vehicle lawfully stopped by police). The instant case is clearly one where, based upon these criteria, a search without a warrant was proper.

Police had received information from an informant, whose reliability was known, that appellant assaulted an individual in an alley by threatening the individual with a gun, and *649 that appellant departed from the scene in a particular automobile. Within minutes, police located that automobile and placed appellant under a brief period of surveillance. Soon thereafter appellant was stopped as he attempted to drive away. Thus, police clearly had probable cause to believe that appellant was in possession of the gun seen by the informant, when, just thirty minutes after the incident in the alley, they searched appellant’s vehicle.

This is not a case where police knew hours in advance that a particular vehicle carrying evidence of crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather, the instant search was conducted when police stopped a moving vehicle just thirty minutes after a reported crime. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper. See Commonwealth v. Milyak, supra; Commonwealth v. Holzer, supra; Commonwealth v. Lewis, supra. See also United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982) (search of suddenly encountered and lawfully stopped vehicle upheld where probable cause was present to believe contraband was concealed within).

Of course, an alternative to an immediate search in the present case would have been to immobilize the vehicle until a warrant could be obtained. As noted, however, in Commonwealth v. Milyak, 508 Pa. at 9-10 , 493 A.2d at 1349 , it is not clear that the intrusion arising from immobilization of an automobile is less than the intrusion of searching it. Thus, immobilization has been held to be an alternative, not a requirement. Id., 508 Pa. at 11 , 493 A.2d at 1351 . In short, this case presents a typical scenario where exigent circumstances made it not reasonably practicable to obtain a warrant prior to stopping a vehicle that contained evidence of crime. Since probable cause to search the vehicle was present, a search warrant was not required, and, thus, the *650 Superior Court properly held the revolver seized during the search to be admissible as evidence.

Commonwealth v. Baker, supra at 148-150, 541 A.2d at 1383-1384 (footnote omitted). Compare: Commonwealth v. Ionata, 518 Pa. 472 , 544 A.2d 917 (1988) (Opinion in Support of Affirmance by Flaherty, J.) (warrantless search of vehicle not justified where, in advance of search, police had obtained warrant to search defendant’s person and apartment, but had neglected to seek authorization for search of defendant’s vehicle).

After careful review, I am satisfied that this is not a case where the parole officers had pre-existing probable cause and an opportunity to obtain a warrant prior to stopping appellee’s vehicle and arresting him for violating his parole. Rather, probable cause to search the vehicle arose after the stop when drug paraphernalia was observed in plain view. Although the parole officers could have immobilized appellee’s vehicle and obtained a search warrant without any risk of the vehicle being driven away (they had custody of both appellee and the vehicle), the Supreme Court has made clear that this was only an option and not a requirement under either the Fourth Amendment or Article I, Section 8, of the Pennsylvania Constitution. See: Commonwealth v. Baker, supra. I would hold, therefore, that the parole officers did not violate appellee’s constitutional rights by searching his vehicle without first obtaining a warrant. For this reason, I would reverse the order of the trial court which suppressed the evidence seized from the trunk of appellee’s vehicle. In that the majority has decided otherwise, I respectfully dissent.